Gagging Orders – controversial or a prudent commercial step?
Gagging orders have been in the news throughout 2013 as the Coalition government has sought to limit their use by councils and the NHS, who wish to prevent ‘whistle-blowing’ by former employees.
The term “Gagging orders” is somewhat sensationalist but as an employer what can you do if you wish to protect your business and reputation?
The starting point is to have a good employment contract that sets out the restrictions that you want to apply, for example in relation to confidentiality.
Those restrictions should be reasonable and carefully drafted so that they can be enforced should the worst come to the worst. When an employee leaves employment it is not normal to have any further agreement in place unless some kind of dispute is intimated. In that event it may be prudent to set up a compromise agreement in order to rule out the possibility of a claim by the employee. In exchange for an agreed payment it can be appropriate to set up further “gagging clauses” which can, in this case, be more stringent.
This last process is probably the one that is at the heart of complaints about whistle blowing, but, let’s be clear, this kind of agreement is usually legally enforceable. The point in the press is more based on morality, should the NHS ever use gagging clauses, rather than addressing the legality of them.
A good employment contract, proper termination processes and a well formulated settlement agreement where necessary should do the trick for most employers!
For information on Lawspeed’s cost effective employment solutions call Theresa Mimnagh on 01273 236236 or email [email protected]
Adrian, a highly experienced lawyer, founded Lawspeed in 1997. He is responsible for developing our extensive portfolio of products and services, including the widely used Lawspeed contract templates. Adrian is an expert on “recruitment law” and specialises in contracts, regulatory compliance, employment status and dispute handling. He is chair of the trade body the Association of Recruitment Consultancies, the only lawyer lead recruitment trade body in the UK. Adrian and his co-director Ravi devised Standards in Recruitment as a vehicle for helping drive up standards and compliance in the industry.
Adrian is our lead in discussions with the government over regulatory evolution. Apart from assisting with client support, Adrian’s primary role is research and development into methods of business delivery, our latest service Proterms being his most recent project. Adrian heads our IR35 lawyers team.